We do not have a talent problem

The Tampa Bay Business Journal reports that a new survey completed by Regus,says that 40 percent of workers are tired of not being promoted, bosses that don't share company goals and are overworked. Their solution is that they are thinking of quitting their current position. This trend indicates several aspects of the job market going forward. First, the job market is improving for them to even be thinking about looking for a new position and second, we as organizational management are not doing enough to keep the human capital resources engaged in our organizations. What would you do if 40 percent of your organization walked out the door? Could you continue to stay in business?

Strategy: Take the blinders off and find ways to get the employees engaged. The age of the dominant supervisor is gone and it is time to be transparent with your employees where the company is going and how you expect to get there.Change the focus of your organization to one of collaborative teams across all departments. The time of the silo mentality has come to an overdue conclusion.

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EEOC issues warning

The use of credit checks and criminal background checks for new employees which carry adamant rejection clauses in the case of detrimental information returned may lead ou to reject a disparate numb er of minority candidates. As a result the EEOC has stated that the use of these tests may lead to discrimination charges against your organization. Becareful that the use of these tests are based on true bona fide occupational qualifications.

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Court investigates impact of Social Media

Limited Discovery of Facebook Allowed in Harassment Case

Sid Steinberg

The Legal Intelligencer

August 12, 2010

It is a fair bet that many of those reading The Legal Intelligencer have neither a Facebook page nor a MySpace account -- although when our children reach a certain age, they can certainly tell us about them. But electronic discovery is well upon us, and employment litigation is at the forefront of issues involving social networking sites.

A recent discovery order in the case of EEOC v. Simply Storage Management in the U.S. District Court for the Southern District of Indiana discussed how much information from such sites is discoverable to an employer defending an employment discrimination claim.

DISCOVERY SOUGHT

According to the opinion, Joanie Zupan and Tara Strahl claimed that they were subjected to sexual harassment during their employment with Simply Storage. In September 2009, the Equal Employment Opportunity Commission, or EEOC, filed a complaint on their behalf and, after a round of preliminary motions, discovery ensued.

Simply Storage's request for production of documents included requests for "all photographs or videos posted by [Zupan or Strahl] or anyone on [their] behalf on Facebook or MySpace [from the beginning of their employment to the present]." Further, Simply Storage requested all "updates, messages, wall comments, causes joined ... activity streams ... and applications [including ... the 'Naughty Application']" for the same time period.

The EEOC, not surprisingly, objected to the production of all social network content -- and, in a protective order, to any deposition questioning along these lines -- claiming that the requests were overly broad, harassing, not relevant, and infringed on the claimant's privacy.

Simply Storage countered that the requests were proper because the EEOC had placed the "emotional health" of the women at issue, beyond that typically encountered in "garden variety emotional distress claims." Specifically, the EEOC had responded to prior discovery regarding damages by claiming that Strahl had sought "medical treatment" for anxiety stemming from the alleged sexual harassment and that Zupan had become "depressed and suffers from post traumatic stress disorder" based upon the same behavior.

In briefing on the issue, the EEOC withdrew its blanket objection to the requested information and, instead, argued that "production should be limited to content that directly addresses or comments on matters alleged in the complaint." Simply Storage countered that the nature of the injuries alleged implicated all of their social network communications.

Initially, the court found that the fact that the claimants may have "locked" their information or profiles from public access did not serve as a legitimate basis for shielding the communications from discovery. Any particular claim of oppression or burden could be addressed with particularity in an appropriate protective order.

LIMITATIONS RECOGNIZED

Next, the court rejected Simply Storage's assertion that all of the content on the claimants' sites was discoverable. Rather, the court held that "it must be the substance of the communication that determines relevance." The court relied upon the 2006 Southern District of New York case Rozell v. Ross-Holst, which recognized that, while "anything that a person says or does might in some theoretical sense be reflective of her emotional state ... that is hardly justification for requiring productions of every thought she may have reduced to writing ... [or] the deposition of everyone she may have talked to."

The court then found the EEOC's proposed limitation too narrow. That is, "it is reasonable to expect severe emotional or mental injury to manifest itself in some [social network] content, [including when the distress occurred and the degree of distress]." Producing only content specifically related to the allegations in the complaint would likely result only in communications supportive of the claim. The court noted that such a restriction "might not ... yield information inconsistent with the claimant's allegations of injury or about other potential causes of injury."

POSTINGS REVEALING EMOTIONS

The court determined that Simply Storage was, therefore, entitled to discover any "profiles, postings or messages ... and [applications from the date of the first allegedly harassing act] through the present that reveal, refer or relate to any emotion, feeling or mental state, as well as communications that reveal, refer or relate to events that could reasonably be expected to produce a significant emotion, feeling or mental state." Similarly, the claimants were required to produce any pictures that they had posted on their sites, as the "claimants' appearance may reveal [their] emotional or mental status."

In responding to the request, the commission was specifically instructed by the court to err on the side of production, and Simply Storage was permitted to inquire of the claimants as to the scope of what has, and has not, been produced.

BROAD IMPLICATIONS

While the court specifically relied upon the claimants' assertion of "severe emotional distress" as the justification for allowing this discovery, it appears as though the court defined "severity" as the claimants having sought treatment for their alleged emotional injuries. However, this type of claim is not as extraordinary as the court appears to believe.

In any type of harassment claim, a plaintiff or claimant will likely be seeking emotional distress damages. If the alleged distress is severe enough to warrant serious consideration in damages -- or during settlement discussions -- the plaintiff will need to have some medical evidence supporting the claim. This will lead to some type of diagnosis -- anxiety, sleeplessness, PTSD, etc. -- that will raise the claim above "garden variety emotional distress."

Similar discovery might be appropriate in the harassment context if the issues of whether the allegedly offensive behavior was "welcome" or whether the plaintiff was subjectively offended are in dispute. That is, the sexual nature of a plaintiff's postings would seem to be relevant if he or she claims to have been offended by such comments in the workplace. This particular issue is neither raised nor discussed in the Simply Storage case, but the issue is sure to arise as the boundaries of social network discovery are further explored by the courts.

Posted via email from hrstrategist@Net-Speed

Court investigates impact of Social Media

Limited Discovery of Facebook Allowed in Harassment Case

Sid Steinberg

The Legal Intelligencer

August 12, 2010

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image: Caroline Fong

It is a fair bet that many of those reading The Legal Intelligencer have neither a Facebook page nor a MySpace account -- although when our children reach a certain age, they can certainly tell us about them. But electronic discovery is well upon us, and employment litigation is at the forefront of issues involving social networking sites.

A recent discovery order in the case of EEOC v. Simply Storage Management in the U.S. District Court for the Southern District of Indiana discussed how much information from such sites is discoverable to an employer defending an employment discrimination claim.

DISCOVERY SOUGHT

According to the opinion, Joanie Zupan and Tara Strahl claimed that they were subjected to sexual harassment during their employment with Simply Storage. In September 2009, the Equal Employment Opportunity Commission, or EEOC, filed a complaint on their behalf and, after a round of preliminary motions, discovery ensued.

Simply Storage's request for production of documents included requests for "all photographs or videos posted by [Zupan or Strahl] or anyone on [their] behalf on Facebook or MySpace [from the beginning of their employment to the present]." Further, Simply Storage requested all "updates, messages, wall comments, causes joined ... activity streams ... and applications [including ... the 'Naughty Application']" for the same time period.

The EEOC, not surprisingly, objected to the production of all social network content -- and, in a protective order, to any deposition questioning along these lines -- claiming that the requests were overly broad, harassing, not relevant, and infringed on the claimant's privacy.

Simply Storage countered that the requests were proper because the EEOC had placed the "emotional health" of the women at issue, beyond that typically encountered in "garden variety emotional distress claims." Specifically, the EEOC had responded to prior discovery regarding damages by claiming that Strahl had sought "medical treatment" for anxiety stemming from the alleged sexual harassment and that Zupan had become "depressed and suffers from post traumatic stress disorder" based upon the same behavior.

In briefing on the issue, the EEOC withdrew its blanket objection to the requested information and, instead, argued that "production should be limited to content that directly addresses or comments on matters alleged in the complaint." Simply Storage countered that the nature of the injuries alleged implicated all of their social network communications.

Initially, the court found that the fact that the claimants may have "locked" their information or profiles from public access did not serve as a legitimate basis for shielding the communications from discovery. Any particular claim of oppression or burden could be addressed with particularity in an appropriate protective order.

LIMITATIONS RECOGNIZED

Next, the court rejected Simply Storage's assertion that all of the content on the claimants' sites was discoverable. Rather, the court held that "it must be the substance of the communication that determines relevance." The court relied upon the 2006 Southern District of New York case Rozell v. Ross-Holst, which recognized that, while "anything that a person says or does might in some theoretical sense be reflective of her emotional state ... that is hardly justification for requiring productions of every thought she may have reduced to writing ... [or] the deposition of everyone she may have talked to."

The court then found the EEOC's proposed limitation too narrow. That is, "it is reasonable to expect severe emotional or mental injury to manifest itself in some [social network] content, [including when the distress occurred and the degree of distress]." Producing only content specifically related to the allegations in the complaint would likely result only in communications supportive of the claim. The court noted that such a restriction "might not ... yield information inconsistent with the claimant's allegations of injury or about other potential causes of injury."

POSTINGS REVEALING EMOTIONS

The court determined that Simply Storage was, therefore, entitled to discover any "profiles, postings or messages ... and [applications from the date of the first allegedly harassing act] through the present that reveal, refer or relate to any emotion, feeling or mental state, as well as communications that reveal, refer or relate to events that could reasonably be expected to produce a significant emotion, feeling or mental state." Similarly, the claimants were required to produce any pictures that they had posted on their sites, as the "claimants' appearance may reveal [their] emotional or mental status."

In responding to the request, the commission was specifically instructed by the court to err on the side of production, and Simply Storage was permitted to inquire of the claimants as to the scope of what has, and has not, been produced.

BROAD IMPLICATIONS

While the court specifically relied upon the claimants' assertion of "severe emotional distress" as the justification for allowing this discovery, it appears as though the court defined "severity" as the claimants having sought treatment for their alleged emotional injuries. However, this type of claim is not as extraordinary as the court appears to believe.

In any type of harassment claim, a plaintiff or claimant will likely be seeking emotional distress damages. If the alleged distress is severe enough to warrant serious consideration in damages -- or during settlement discussions -- the plaintiff will need to have some medical evidence supporting the claim. This will lead to some type of diagnosis -- anxiety, sleeplessness, PTSD, etc. -- that will raise the claim above "garden variety emotional distress."

Similar discovery might be appropriate in the harassment context if the issues of whether the allegedly offensive behavior was "welcome" or whether the plaintiff was subjectively offended are in dispute. That is, the sexual nature of a plaintiff's postings would seem to be relevant if he or she claims to have been offended by such comments in the workplace. This particular issue is neither raised nor discussed in the Simply Storage case, but the issue is sure to arise as the boundaries of social network discovery are further explored by the courts.

Posted via email from hrstrategist@Net-Speed

An indication of things to come

Michael Vandevort, who is fellow HR professional posted this information this morning:

Court ruling: You can kick unions off your property | BusinessBrief.com

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In at least one state, a new court ruling changes the game on union organizers’ access to workplaces.

 

The case was decided in California – where a lot of landmark cases set the tone for what happens in the rest of the country. The facts played out this way.

The company, Ralphs Grocery Co., owned and operated a large unionized main facility and a non-union warehouse When the company resisted the union’s attempts to organize workers at the warehouse, the union retaliated by picketing and distributing fliers at the company’s unionized main facility. The company responded by filing a complaint in court, seeking a temporary restraining order against the union – essentially charging the union with trespassing.

The union cited the state’s Moscone Act, which gives preferential treatment to unions charged with trespass. A lot of states have similar legislation). In part, the act reads, “no court … has jurisdiction to issue any restraining order or preliminary or permanent injunction which … prohibits” union activities. Under the Act, the company would have to prove that, among other reasons, the picketing presented a safety hazard. The appeals court in effect ruled that the Moscone Act was unconstitutional, in that it placed an almost impossible burden in the company to prevent union trespassing.

The case presents a lesson to employers about unions and access to employers’ property:

• Federal labor law prohibits discriminatory enforcement of specific no-trespass policies against unions. So you’ll want to be careful about allowing other groups to solicit on your property while you attempt to bar unions. If you allow one group, you have to allow others, including union organizers.
• Most companies don’t have a plan if organizers show up and want to picket or otherwise use company property. Be prepared, including training managers and supervisors on how to handle onsite labor activity.
• If you rent or lease property, review your agreement with the property owner to determine whether you have the right to exclude organizers.

Cite: Ralphs Grocery Company v. United Food and Commercial Workers Union, Local 8, No. 34-2008-8682

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Excuse the interruption

This is a test to make sure the email notifaction system is working. Please disregard.

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DOL releases new employment figures

Private employers added 71,000 jobs in July; unemployment rate unchanged at 9.5 percent.

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And the beat goes on

A federal judge has given final approval to a $24.2 million class action settlement by Sanofi-Aventis U.S. LLC over allegations it underpaid and underpromoted thousands of female sales representatives.

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Further signs of the Changing Workplace

 CheckPoint HR, the trusted ally in web-based Human Resources management for small to mid-sized companies, today reports that the month of July saw an increase of 1.4% in employment and hiring in the Tri-State area (NY Metro area) The increase signifies the sixth consecutive month of growth as business hiring outpaces downsizing.

According to CheckPoint HR’s data, which is polled from more than 400 customers in the Tri-State area, employment among small-to-medium-sized businesses have increased at a rate of 3.3% from January 2010 – July 2010. Majority of the hiring activity is taking place at businesses with 100 and 200 employees.

“At CheckPoint HR, we saw an increase of 19.8% in job opportunities during the first two quarters of 2010 from our customers,” said Michelle Moylan, HR Director, CheckPoint HR.

When a business leverages a Human Resources Management System (HRMS) that combines benefits, payroll and HR management services integrated with applicant tracking and job boards, they can reduce the time and costs associated with hiring.

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When was the last time you visited your IP policy?

Whether I am in a mall, a restaurant, a concert or teaching a seminar I constantly see individuals texting away on their blackberries. Pne of hte primary reason many users have gone to the Blackberry plaform was that it provided a secure metjhod of communicating  with others. Now along comes United Arab Emirates and Saudia Arabia who are on the verge of banning all use of Blackberries within their territory. The reason is the very reason why many users use them. Their concern is that due the secure networks there is no available audit trail that can be followed in the case of criminal activity. This has put Research Motion Incorporated in a very precarious position. On one hand they want to continue to provide the feature that has attracted all this business. On the other hand they are cognizant of the fact that the lack of a verifiable tracking system opens the avenues of the criminal elements to operate.

Strategy: It would be a perceptive move on your part to review your intellectual property policy now rather than later. What you need to be cognizant of is a) what types of intellectual property are you currently transmitting over the Blackberries within your organization? and b) Of this IP how much would be detrimental to your organizations interests if the secure platform was opened somewhat. From there you should look at what alternatives are you available to maintain the integrity of your corporate data which heretofore you thought nothing of sending over your network, knowing that you could be safe with the knowledge who was seeing your data. If RMI takes steps to meet the concerns of global governmental agencies, this status quo could change overnight. Are you ready if it does?

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Department of Labor releasess guidance on hiring employees under 18

The interactive, online Child Labor Rules Advisor [ http://www.dol.gov/elaws/esa/flsa/cl/default.htm ] is designed to answer questions about workers and businesses that are subject to federal child labor rules. This Advisor provides information at different levels of detail, depending on who is seeking the information, (i.e., youth, parent, employer, teacher). Federal child labor rules are established by the Fair Labor Standards Act (FLSA). 

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Tower Watson releases Compensation Survey Results

With the economy showing some signs of improvement, U.S. companies are planning to issue modestly larger pay raises to their workers next year. Employees can also expect to receive larger annual bonuses this year as organizations return to profitability, according to two new surveys conducted by global professional services company Towers Watson (NYSE, NASDAQ: TW).

A survey of 1,046 U.S. companies conducted by Towers Watson Data Services found that companies are projecting merit increases of 2.7% for 2011, an increase from the 2.3% raise workers are receiving this year and 1.6% they received in 2009. The survey also found that the number of companies freezing salaries is declining. While 32% of companies froze salaries in 2009, the percentage decreased to 12% in 2010 and is expected to drop to only 5% in 2011.

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Trails of Technology Part 2

We are back up and running again with the corporate website and email

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Trials of Modern Technology

Got up this morning to find that corporate website and thus corporate webmail had crashed. Hope to have it back up later today.

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Untitled

Taken from DCI Consulting's Bog with permission

On July 23, 2010, Administrative Law Judge Larry W. Price supported Frito-Lay on an issue that is critical to all DCI clients. The facts in this case are as follows. The OFCCP selected the Frito Lay Dallas Baked Snack facility for a compliance review and sent the standard scheduling letter. Item 10 of the scheduling letter specifically asks for information pertaining to applicants and hiring. More specifically, Item 10 requests: Data on your employment activity (applicants, hires, promotions and terminations) for the preceding AAP year and, if you are six months or more into your current AAP year when you receive this listing, for the current AAP year.

Because Frito Lay was six months or more into its plan year, it sent the required 12 months (June of 2006 through May of 2007) of applicant flow data for the annual plan and the required six months of update data (June of 2007 through December of 2007). OFCCP conducted a desk audit review and identified “adverse impact” in the supplied applicant flow data. As a result, on November 10, 2009, OFCCP requested that Frito Lay supply more recent applicant and hire data from January 1, 2008 through October 31, 2009. Frito-Lay refused and the OFCCP filed an administrative complaint.

As stated in the ALJ Price’s ruling: The issue before the Court is whether the temporal scope of the desk audit phase of a compliance review can be extended beyond the date that the contractor received its Scheduling Letter

Short and Sweet --- the answer is NO!!!. In the words of ALJ Price: In summary, I find that the EO, regulations, case law and the FCCM contemplate that the temporal scope of the desk audit phase of a compliance review cannot be extended beyond the date that the contractor received its Scheduling Letter. Accordingly, Frito-Lay‟s Motion for Summary Decision should be granted.

Here’s wondering if they can re-open the Bank of America case.

Some potential implications of this significant ruling include the following:

1. This ruling makes it clear that OFCCP can go back two years from the receipt of the scheduling letter. However, OFCCP cannot ask for additional data going forward once the scheduling letter has been received. This is a significant ruling for federal contractors as requests for additional data going forward have been a common practice for OFCCP in recent compliance evaluations.

2. The decision reduces potential back pay exposures in pending audits to the two year period preceding the audit notice.

3. Frito Lay cited language from OFCCP’s Federal Contract Compliance Manual (FCCM) as its justification for NOT submitting the additional data going forward. The OFCCP basically said that the FCCM is “old and outdated” and did not have to abide it. The judge thought otherwise and stuck to guidance in the FCCM. Note that OFCCP is currently reviewing and revising the FCCM, so it will be interesting to see what changes are made to relevant data-related sections.

4. It is important to note that OFCCP could open a new audit for the “post-audit” period, but that location would have to be selected again from the ‘neutral’ FCCS system

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Dept of Labor Releases June Employment Cost Index

Compensation costs for civilian workers increased 0.5 percent, seasonally 

adjusted, for the 3-month period ending June 2010, the U.S. Bureau of Labor

Statistics reported today. Wages and salaries (which make up about 70 percent

of compensation costs) increased 0.4 percent while benefits (which make up the 

remaining 30 percent of compensation) increased 0.6 percent.

Civilian Workers 

Compensation costs for civilian workers increased 1.8 percent for the 12-month

period ending June 2010. This was the same as the 12-month period ending in June

2009. Wages and salaries increased 1.6 percent for the current 12-month period, 

compared to a 1.8 percent increase for the 12-month period ending in June 2009.
Benefit costs rose 2.5 percent, up from a 1.8 percent increase for the 12-month

period ending June 2009.

Private Industry Workers
 

Compensation costs for private industry workers increased 1.9 percent for the

12-month period ending June 2010, higher than the 1.5 percent increase for the

12-month period ending June 2009. The wage and salary series increased 1.6 percent

for the current 12-month period, the same as for the period ending June
2009. The cost of benefits increased 2.5 percent for the 12-month period ending

June 2010, higher than the June 2009 increase of 1.3 percent. Employer costs for health benefits
rose 5.0 percent for the 12-month period ending June 2010. In June 2009, the 12-month percent
change was 4.4 percent.

Among occupational groups, compensation cost increases for private industry 

the 12-month period ending June 2010 ranged from 1.5 percent for management,

professional, and related occupations to 2.3 percent for sales and office 

occupations. The sales and office increase was primarily due to a 2.9
percent increase among sales and related occupations, which rebounded from 

a 1.6 percent decrease a year earlier. The other component of sales and 

office occupations--office and administrative support--increased
2.0 percent.
 

Among industry supersectors, compensation cost increases for private industry

workers for the current 12-month period ranged from 1.0 percent for construction

to 2.6 percent for trade, transportation, and utilities.

State and Local Government Workers
 

Compensation costs for State and local government workers increased 1.8 percent

for the 12-month period ending June 2010. Since this series began in June 1982, 

published values ranged from 2.0 percent in March 2010 to 9.6 percent in June 1982.

Wages and salaries increased 1.4 percent. This series also began in June 1982. 

Prior published values ranged from 1.8 in March 2010 to 8.5 percent in June 1982. 

Benefit costs increased 2.6 percent. Prior published values for this series, 

which began in June 1990, ranged from 1.2 percent in December 1997 to 8.3 percent

in June 1990.

U.S Department of Labor Releases June Employment Cost Index

Compensation costs for civilian workers increased 0.5 percent, seasonally adjusted, for the 3-monthperiod ending June 2010, the U.S. Bureau of Labor Statistics reported today. Wages and salaries (which makeup about 70 percent of compensation costs) increased 0.4 percent while benefits (which make up the remaining30 percent of compensation) increased 0.6 percent.Civilian Workers     Compensation costs for civilian workers increased 1.8 percent for the 12-month period ending June 2010.This was the same as the 12-month period ending in June 2009. Wages and salaries increased 1.6 percent forthe current 12-month period, compared to a 1.8 percent increase for the 12-month period ending in June 2009.Benefit costs rose 2.5 percent, up from a 1.8 percent increase for the 12-month period ending June 2009.Private Industry Workers     Compensation costs for private industry workers increased 1.9 percent for the 12-month period endingJune 2010, higher than the 1.5 percent increase for the 12-month period ending June 2009. The wage andsalary series increased 1.6 percent for the current 12-month period, the same as for the period ending June2009. The cost of benefits increased 2.5 percent for the 12-month period ending June 2010, higher than theJune 2009 increase of 1.3 percent. Employer costs for health benefits rose 5.0 percent for the 12-monthperiod ending June 2010. In June 2009, the 12-month percent change was 4.4 percent.     Among occupational groups, compensation cost increases for private industry workers for the 12-monthperiod ending June 2010 ranged from 1.5 percent for management, professional, and related occupations to2.3 percent for sales and office occupations. The sales and office increase was primarily due to a 2.9percent increase among sales and related occupations, which rebounded from a 1.6 percent decrease a yearearlier. The other component of sales and office occupations--office and administrative support--increased2.0 percent.     Among industry supersectors, compensation cost increases for private industry workers for the current12-month period ranged from 1.0 percent for construction to 2.6 percent for trade, transportation, andutilities.State and Local Government Workers     Compensation costs for State and local government workers increased 1.8 percent for the 12-month periodending June 2010. Since this series began in June 1982, published values ranged from 2.0 percent in March2010 to 9.6 percent in June 1982. Wages and salaries increased 1.4 percent. This series also began in June1982. Prior published values ranged from 1.8 in March 2010 to 8.5 percent in June 1982. Benefit costsincreased 2.6 percent. Prior published values for this series, which began in June 1990, ranged from 1.2percent in December 1997 to 8.3 percent in June 1990.

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FLSA fines continue to mount

Following an investigation by the U.S. Department of Labor's Wage and Hour Division, GeoPharma Inc. has agreed to pay $1,360,098 in back wages to 187 employees for violations of the Fair Labor Standards Act.

"Employees have the right to expect that they will receive full pay on time for their work, and the Labor Department will not sit by while employers attempt to evade their responsibilities," said Secretary of Labor Hilda L. Solis.

The investigation, conducted by the Wage and Hour Division's district office in Tampa, determined that the company missed or was in arrears for 14 payroll periods from late 2009 through 2010. The FLSA requires that covered employers pay employees at least equal to the federal minimum wage for each hour worked, and wages are due on the regular payday for the pay period. In this case, the investigation revealed that the employer broke both provisions of the law at different times by not paying some wages at all and by not paying employees on time.

The dietary supplements and pharmaceutical manufacturing company operates six facilities in Largo, Fla. Employees affected by this investigation were involved in production, inventory control and shipping.

The FLSA requires that covered employees be paid at least the federal minimum wage of $7.25 for all hours worked, plus time and one-half their regular rates of pay, including commissions, bonuses and incentive pay, for hours worked beyond 40 per week. Employers must also maintain accurate time and payroll records.

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Department of Justice releases new rules regarding ADAA implementation

On July 26th, in conjunction with the celebration of the anniversary of the American's with Disabilities Act, the U.S. Department of Justice has rleased regulations to clarify some terms under the Act. Among these are :

• Major changes include a new definition for the term "service animal." Dogs and miniature horses individually trained to mitigate the effects of a disability are now the only animals that qualify as service animals.

• The rules also now require entities to allow individuals with disabilities to use Segways wherever pedestrians and wheelchairs are permitted, unless it would fundamentally alter the entity's services or pose a threat to safety. New requirements for event ticketing and reservations at hotels are also included in the rules.

• The rules provide a general safe harbor for elements in covered facilities that were built or altered in compliance with the previous standards. Those elements will not need to be brought into compliance with the new standards until they are subject to a planned alteration, according to DOJ.

• Entities that previously had the option to comply with either the ADA Accessibility Guidelines or the Uniform Federal Accessibility Standards no longer have that option. All entities subject to Titles II or III of the ADA must now comply with the new accessibility standards.

• In addition to the new final rules, DOJ issued an advanced notice of proposed rulemaking (ANPRM) regarding its intention to regulate websites, movie captioning and 911 services, among other things. Notably, the department has requested public input on which web standards it should adopt in requiring entities covered by Titles II and III to make their websites accessible: the Web Content Accessibility Guidelines or the section 508 standards.

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20th Anniversary Meets Technology

We promised you an update on the terms of the legislation working its way through Congress regarding new access standards for the disabled to modern technology. Thanks to the staff at SHRM nad a press release from the Associated Press, I was able to determine that the bill calls for:

The bill, which passed 348-23 and now moves to the Senate, takes such steps as making it easier for the blind to access the Internet from smart phones, providing deaf people with the ability to watch new TV programs online with captions included, and requiring that telecom equipment used to make calls over the Internet be compatible with hearing aids.

The measure also:

_Gives the blind a fuller TV experience through audible descriptions of on-screen action.

_Makes cable TV program guides and selection menus accessible to people with vision loss.

_Mandates that remote controls have buttons or similar devices to easily access the closed captioning on broadcast and pay TV.

_Provides financial support to help the low-income disabled buy accessible Internet technology.

The legislation does not require manufacturers and service providers to install particular technology, but it does set new federal standards that the telecommunications industry will follow.

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